FILED United States Court of Appeals Tenth Circuit
PUBLISH June 22, 2021 Christopher M. Wolpert UNITED STATES COURT OF APPEALS Clerk of Court
TENTH CIRCUIT
REORGANIZED FLI, INC.,
Plaintiff - Appellee, v. No. 20-3056 THE WILLIAMS COMPANIES, INC.; DYNEGY MARKETING & TRADE; WILLIAMS MERCHANT SERVICES COMPANY, INC.; WILLIAMS ENERGY MARKETING & TRADING COMPANY,
Defendants - Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS (D.C. NO. 2:05-CV-02389-JAR-GEB)
Jennifer Caughey, Jackson Walker L.L.P., Houston, Texas (Robert T. Adams, Steven D. Soden, and Mitchell F. Engel, Shook, Hardy & Bacon LLP, Kansas City, Missouri; Joseph A. Fischer, III, Jay K. Wieser, Edwin Buffmire, and Adam W. Aston, Jackson Walker L.L.P., Houston, Texas; and Patrick N. Fanning, Peak Litigation, L.L.P., Kansas City, Missouri, with her on the briefs), for Defendants - Appellants.
Leslie V. Pope, Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C., Washington, D.C. (Michael J. Guzman, Kevin J. Miller, and T. Dietrich Hill, Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C., Washington, D.C.; Thomas J. Brill, Law Office of Thomas H. Brill, Leawood, Kansas; Gary D. McCallister, McCallister Law Group, LLC, Chicago, Illinois; Isaac L. Diel, Sharp Law LLP, Overland Park, Kansas; Eric I. Unrein, Cavanaugh, Biggs & Lemon, P.A., Topeka, Kansas; and Donald D. Barry, Barry Law Offices, LLC, Donald D. Barry, Chartered, Topeka, Kansas, with her on the brief), for Plaintiff - Appellee.
Before HARTZ, MURPHY, and McHUGH, Circuit Judges.
MURPHY, Circuit Judge.
I. Introduction
In 2005, Appellee Reorganized FLI, Inc. 1 (“Farmland”) brought an action
against Appellants alleging violations of the Kansas Restraint of Trade Act
(“KRTA”). Farmland sought, inter alia, full consideration damages pursuant to
Kan. Stat. Ann. § 50-115. In 2019, Appellants moved for summary judgment on
Farmland’s claims, arguing the repeal of § 50-115 operated retroactively to
preclude Farmland from obtaining any relief. The Kansas District Court denied
the motion for summary judgment but granted Appellants’ motion for leave to file
an interlocutory appeal with this court. In this interlocutory appeal, Appellants
seek reversal of the district court’s denial of summary judgment and a ruling
ordering the district court to enter judgment in their favor.
1 The named plaintiff in this action was J.P. Morgan Trust Company in its capacity as the Liquidating Trustee of the Farmland Industries Liquidating Trust.
-2- Exercising jurisdiction pursuant to 28 U.S.C. § 1292(b), this court affirms
the denial of summary judgment but for reasons different from those of the
district court. Although we conclude § 50-115 applies retroactively to foreclose
Farmland from recovering full consideration damages, Farmland is entitled to
other relief if it prevails on the merits of its claims. Thus, the repeal of § 50-115
does not leave Farmland without a remedy and Appellants are not entitled to
summary judgment.
II. Background
On August 8, 2005, Farmland filed an action in Kansas state court alleging,
inter alia, that Appellants engaged in anti-competitive conduct by conspiring to
manipulate the price of natural gas, in violation of the KRTA, Kan. Stat. Ann
§ 50-112. 2 According to Farmland’s complaint, Appellants’ conduct distorted and
artificially inflated the price Farmland paid for natural gas. After Appellants
removed the matter to the United States District Court for the District of Kansas,
Farmland filed an amended complaint. The matter was thereafter transferred to
the United States District Court for the District of Nevada where it was
consolidated with multi-district litigation addressing similar claims made by other
plaintiffs (the “MDL Case”). In 2019, the matter was returned to the District of
2 Farmland’s complaint was brought pursuant to Kan. Stat. Ann §§ 50–101, –108, –112, –115, –117, and –161.
-3- Kansas.
At the time Farmland’s claims arose, Kansas law permitted “any person
injured or damaged by any such arrangement, contract, agreement, trust or
combination, described in [Kan. Stat. Ann § 50-112] . . . [to] sue for and recover
. . . the full consideration or sum paid by such person.” Kan. Stat. Ann. § 50-115
(repealed 2013). Plaintiffs who alleged violations of § 50-112 could also seek
treble damages. Id. § 50-161(b). Farmland’s amended complaint contains the
following paragraph related to damages:
During the relevant period of the antitrust violations by defendants and their co-conspirators, plaintiff purchased natural gas, and by reason of the violations alleged herein, paid more for natural gas than it would have paid in the absence of such antitrust violations. As a result, plaintiff has been injured. Plaintiff is seeking damages under the full consideration damage remedy of Kansas Statutes Annotated § 50-115 during the relevant time period, January 1, 2000 thru December 31, 2001, the exact dates being undetermined at this time. The amount of damages sustained by plaintiff is presently undetermined.
In its Prayer for Relief, the amended complaint also asked that Farmland “be
awarded such other and further relief as [the] Court may deem necessary and
appropriate.” Section 50-115 was repealed in 2013, thereby eliminating full
consideration damages for violations of § 50-112. Farmland did not amend its
complaint after the statute was repealed to remove its request for full
consideration damages.
-4- In 2019, Appellants moved for summary judgment, asserting the repeal of
full consideration damages applies retroactively, leaving Farmland with no
available remedy and, thus, no viable suit. The district court denied Appellants’
motion, concluding the repeal of § 50-115 operated only prospectively and, thus,
Farmland remains entitled to full consideration damages if it prevails on the
merits of its claims. The district court, however, certified for interlocutory appeal
the question of whether the repeal of § 50-115 applies retroactively under Kansas
law, noting there was substantial ground for difference of opinion.
III. Discussion
A. Standard of Review
This court reviews a district court’s decision on a summary judgment
motion de novo, applying the standard set out in Rule 56(a) of the Federal Rules
of Civil Procedure. Doe v. Univ. of Denver, 952 F.3d 1182, 1189 (10th Cir.
2020). Under that standard, a “court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Because there is
no assertion this matter involves a genuine dispute as to any material fact, our
review is limited to determining if the district court correctly applied the law. See
Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir. 1995); see also
-5- Knoll v. Olathe Sch. Dist. No. 233, 439 P.3d 313, 315 (Kan. 2019) (“A statute’s
applicability presents a question of law.”).
B. Retroactivity Under Kansas Law
Both parties acknowledge Kansas law controls the analysis of whether the
repeal of § 50-115 applies retroactively. They also agree the Kansas courts have
not definitively decided the question. When an appeal presents an unsettled
question of state law, we must ordinarily attempt to predict how the highest court
would interpret the issue. 3 Schrock v. Wyeth, Inc., 727 F.3d 1273, 1284 (10th Cir.
2013). We “may seek guidance from decisions rendered by lower courts in the
relevant state, appellate decisions in other states with similar legal principles,
district court decisions interpreting the law of the state in question, and the
general weight and trend of authority in the relevant area of law.” Wade v.
EMCASCO Ins. Co., 483 F.3d 657, 666 (10th Cir. 2007) (quotation and citations
omitted).
Many decades ago, the Kansas Supreme Court held that unless there is
legislative intent to the contrary, “when a change of law merely affects the
remedy or law of procedure, all rights of action will be enforced under the new
procedure without regard to whether they accrued before or after such change of
3 Neither party has asked this court to certify the retroactivity question to the Kansas Supreme Court.
-6- law.” Jones v. Garrett, 386 P.2d 194, 199 (Kan. 1963). A change that affects the
substantive rights of the parties, however, “operates prospectively unless its
language clearly indicates that the legislature intended it to operate retroactively.”
Norris v. Kan. Emp. Sec. Bd. of Review, 367 P.3d 1252, 1257 (Kan. 2016)
(quotation omitted). These general rules are applicable unless retroactive
application of the statutory change would infringe vested rights and thereby
violate due process. Owen Lumber Co. v. Chartrand, 73 P.3d 753, 756 (Kan.
2003) (noting the Kansas Supreme Court has repeatedly held that procedural and
remedial statutes “will be given retrospective application only if such
retrospective application will not affect a vested right of a party” (quotation and
alteration omitted)); Brennan v. Kan. Ins. Guar. Ass’n, 264 P.3d 102, 113 (Kan.
2011).
The parties do not quarrel with any of these general principles of Kansas
law. Their disagreement centers on whether § 50-115 was remedial or
substantive. If substantive, the repeal operates prospectively under the general
Kansas rule, and Farmland’s right to full consideration damages if it prevails on
the merits is unaffected. If remedial, however, the repeal operates retroactively
unless the Kansas legislature intended otherwise or unless retroactive application
would affect Farmland’s vested rights. If applied retroactively, the repeal of
§ 50-115 will extinguish Farmland’s ability to recover full consideration damages.
-7- C. Section 50-115’s Full-Consideration Provision Was Remedial
The Kansas Supreme Court has held that “[s]ubstantive laws give or define
the right, give the right or denounce the wrong, or create liability against a
defendant for a tort committed.” Brennan, 264 P.3d at 113. Substantive
legislation that creates a cause of action is distinguishable from a provision
entitling a party to recover damages if it prevails in its action. Foster v.
Humburg, 299 P.2d 46, 50 (Kan. 1956) (“The ‘cause of action’ is the wrong done,
not the measure of compensation for it, or the character of relief sought.”).
“Damage is not the cause of action. It is merely a part of the remedy which the
law allows for the injury resulting from a breach or wrong.” Id. Applying these
principles of Kansas law, we conclude the full-consideration provision of § 50-
115 was not a substantive provision because it did not create liability; it merely
set out the remedy available to a plaintiff upon proof a defendant was liable for
violating § 50-112. 4 This conclusion is supported by the express language used
by the Kansas legislature in § 50-112 and § 50-115.
Section 50-112 provides as follows:
Except as provided in K.S.A. 50-163, and amendments thereto, all arrangements, contracts, agreements, trusts, or combinations between persons made with a view or which tend to prevent full and free
4 Our retroactivity analysis has no bearing on whether the damages provisions of the KRTA are procedural or substantive for purposes of Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938).
-8- competition in the importation, transportation or sale of articles imported into this state, or in the product, manufacture or sale of articles of domestic growth or product of domestic raw material, or for the loan or use of money, or to fix attorney or doctor fees, and all arrangements, contracts, agreements, trusts or combinations between persons, designed or which tend to advance, reduce or control the price or the cost to the producer or to the consumer of any such products or articles, or to control the cost or rate of insurance, or which tend to advance or control the rate of interest for the loan or use of moneys to the borrower, or any other services, are hereby declared to be against public policy, unlawful and void.
Section 50-112 describes multiple arrangements that wrongly restrain competition
in violation of Kansas public policy, plainly fitting within the definition of a
substantive provision under settled Kansas law. See Brennan, 264 P.3d at 113.
Section 50-115, on the other hand, did not define any right, denounce any wrongs,
or create liability. It merely referenced § 50-112 and provided that once a litigant
proved a defendant engaged in the conduct prohibited by § 50-112, he was
entitled to damages equal to “the full consideration or sum paid . . . for any
goods, wares, merchandise and articles included in or advanced or controlled in
price by such combination, or the full amount of money borrowed.” 5 Kan. Stat.
5 Section 50-115 also gave any person injured or damaged by the conduct set out in § 50-112 the right to “sue for” full consideration damages. But this appeal does not involve the question of whether a provision creating a private right of action is substantive or procedural. Further, the repeal of § 50-115 had no affect on the ability of “any person who may be damaged or injured by any agreement, monopoly, trust, conspiracy or combination which is declared unlawful by the Kansas restraint of trade act” to bring suit pursuant to Kan. Stat. Ann. § 50- 161(b). And, more to the point, Appellants have not argued Farmland’s suit (continued...)
-9- Ann. § 50-115 (repealed 2013). The Kansas Court of Appeals has held that a
provision setting “out the type of relief a [plaintiff] may obtain from the court and
the procedure for doing so” is remedial. Dester v. Dester, 335 P.3d 119, 123
(Kan. Ct. App. 2014). The full-consideration provision of § 50-115 did just that
and no more.
Relying on statements made by the Kansas Supreme Court in Kleibrink v.
Missouri-Kansas-Texas Railroad Co., 581 P.2d 372 (Kan. 1978), Farmland argues
the repeal of § 50-115 affected the amount of damages recoverable for violations
of the KRTA and, under Kansas law, amendments affecting the amount of
damages are substantive. The Kleibrink court addressed the question of whether
an increase in the statutory limit recoverable in a wrongful death action applied
prospectively or retroactively. Id. at 378. Concluding the statutory change
applied prospectively, the Kansas Supreme Court adopted the position that “an
increase, decrease or repeal of the statutory maximum recoverable in wrongful
death actions is Not retroactive” because “[s]tatutory increases in damage
limitations are changes in substantive rights and not mere remedial changes.” Id.
5 (...continued) should be dismissed because the repeal of § 50-115 retroactively stripped Farmland of the right to bring a cause of action alleging a violation of § 50-112. Appellants have argued only that Farmland can no longer seek full consideration damages as a result of the repeal of § 50-115. Accordingly, our review is limited to the damages provision of § 50-115.
-10- at 378-79 (quotation omitted). As support for this conclusion, the Kleibrink court
stated that “under [the Kansas] wrongful death statute, the death limitation is Not
a measure of compensation. Instead, it is simply a limitation upon recovery.” Id.
at 379. It is not surprising that Kansas treats an increase in statutory damages as
substantive. Such a change impacts the amount of a defendant’s maximum
liability based on legislative decree, not wrongful conduct. Thus, if applied
retroactively, an increase in statutory damage limitations could increase a
defendant’s liability for past conduct without regard to the specifics of
defendant’s conduct or plaintiff’s evidence of damages.
The situation presented here is not analogous to that in Kleibrink because
the repeal of § 50-115 was not a change to a statutory damage limitation and did
not, on its face, increase or decrease a defendant’s liability for past conduct. It,
instead, involved a change to the measure of compensation for violations of the
KRTA by eliminating full consideration damages. The Kansas Supreme Court in
Kleibrink made it clear that a statutory change to a measure of compensation is
not substantive, expressly distinguishing the statutory “death limitation” from “a
measure of compensation.” Id. Thus, Kleibrink supports, rather than undermines,
-11- the proposition that the repeal of § 50-115 applies retroactively because § 50-115
was remedial and not substantive. 6
Farmland also relies on the decision of the United States Supreme Court in
Landgraf v. USI Film Products, 511 U.S. 244 (1994). Landgraf involved changes
made to Title VII by the Civil Rights Act of 1991, including the addition of the
right to recover compensatory and punitive damages for violations of the statute.
Id. at 247. Before the amendment, “the law did not then authorize any recovery
of damages even though [the plaintiff] was injured.” Id. at 250; see also id. at
252 (“Before the enactment of the 1991 Act, Title VII afforded only ‘equitable’
remedies. The primary form of monetary relief available was backpay.”). After
the amendment, a plaintiff was able to sue for “monetary relief for some forms of
workplace discrimination that would not previously have justified any relief.” Id.
at 254. Because the new compensatory damages provision “effect[ed] a major
expansion in the relief available to victims of employment discrimination” and
6 For the same reasons, the Kansas Supreme Court’s decision in In re Estate of Laue, 589 P.2d 558 (Kan. 1979), does not support Farmland’s argument that the repeal of § 50-115 was substantive. In re Estate of Laue involved an amendment to the statutory allowance of a surviving spouse. Id. at 567. Like the change at issue in Kleibrink, the statutory amendment in In re Estate of Laue was substantive because it legislatively established the amount to which the surviving spouse was entitled. The Kansas Supreme Court noted “[t]he statutory allowance does not involve a mere remedy or procedure.” Id. Again, that is not the situation presented in this matter because § 50-115 did not dictate a minimum or maximum damages award prior to its repeal.
-12- “attache[d] an important new legal burden” to the conduct of the defendant
occurring before its enactment, the Court held the amendment was substantive and
did not apply retroactively. Id. at 255, 282-83. The Court characterized the
amendments to Title VII made by the Civil Rights Act of 1991 as “creating a new
cause of action” by “confer[ring] a new right to monetary relief on [employees]
who were victims of a hostile work environment but were not constructively
discharged.” Id. at 283. The repeal of § 50-115, however, did not affect a
plaintiff’s right to recover compensatory damages for violations of the KRTA.
That right existed before the repeal and continues to exist after. Neither did the
repeal impose new duties on a defendant or expand the conduct prohibited by the
KRTA. Thus, the analysis of the Supreme Court in Landgraf has no bearing on
the question before us and does not alter our conclusion that the repeal of § 50-
115 was remedial, not substantive. 7
D. The Repeal of § 50-115 Applies Retroactively
Having concluded § 50-115 was a remedial provision, not a substantive
provision, we must now address whether its repeal applies retroactively. Kansas
law on the point is clear: a remedial change applies retroactively by default unless
there is clear legislative intent to the contrary or the retroactive application would
7 Further, the Supreme Court’s decision in Landgraf was not grounded in Kansas law and the issue currently before this court involves only a question of Kansas law.
-13- affect a party’s vested rights. Owen Lumber Co., 73 P.3d at 755-56. As to the
first part of this inquiry, there is no statutory language exempting the repeal of
§ 50-115 from retroactive application.
At the same time it repealed § 50-115, the Kansas legislature enacted a
separate provision addressing the retroactivity of the changes made to §§ 50-101,
50-112, and 50-163. That provision, Kan. Stat. Ann. § 50-164, is still part of the
Kansas Code and reads as follows:
K.S.A. 50-163 and the amendments to K.S.A. 50-101 and 50-112 by this act shall be applied retroactively to any choses in action or defenses premised on any provision of the Kansas restraint of trade act amended or repealed by this act, and any such choses in action or defenses that have accrued as of the effective date of this act shall be abated, but causes of action that were pending in any court before the effective date of this act, shall not be abated. All other non-remedial provisions of this section shall be applied prospectively.
By its express terms, § 50-164 directs that substantive amendments made to § 50-
101 and § 50-112 and the 2013 enactment of § 50-163 apply retroactively in
certain circumstances. In other words, § 50-164 provided limited exemptions to
the Kansas default rule that substantive legislation applies only prospectively.
Section 50-164 also reiterated the default Kansas rule that non-remedial statutory
provisions apply prospectively. But, as we held above, § 50-115 was remedial
and, thus, this clause is inapplicable. Further, the statutory provision at issue
here, i.e., § 50-115, is not referenced in § 50-164. Thus, the Kansas legislature
-14- did not express any intention in § 50-164 to exempt the repeal of § 50-115 from
the default Kansas rules on retroactivity.
This leaves only the question of whether the retroactive application of the
statutory change would affect Farmland’s vested rights. Owen Lumber Co., 73
P.3d at 755-56. To determine whether applying a statutory change retroactively
infringes vested rights, Kansas courts consider three factors: “(1) the nature of the
rights at stake (e.g., procedural, substantive, remedial), (2) how the rights were
affected (e.g., were the rights partially or completely abolished by the legislation;
was any substitute remedy provided), and (3) the nature and strength of the public
interest furthered by the legislation.” Brennan, 264 P.3d at 113 (quotation
omitted). As to the first factor, we have already concluded § 50-115 was a
remedial statute. Thus, the first factor weighs in favor of retroactive application
because, under the default Kansas rule, changes to remedial statutes apply
retroactively when there is no legislative intent to the contrary. See Owen Lumber
Co., 73 P.3d at 755-56.
The second factor requires this court to examine how retroactive
application of the statutory change affects the parties’ rights. The Kansas
Supreme Court held in Brennan that “the legislature may retroactively modify
remedies by which rights are enforced, unless the modification has the practical
effect of abolishing the right.” Brennan, 264 P.3d at 114 (citing Owen Lumber
-15- Co., 73 P.3d at 753). Thus, in some circumstances, the repeal of a purely
remedial statutory provision, like § 50-115, cannot be applied retroactively
because of due process concerns. See id. (“[A] statute may be remedial and affect
a vested right . . . .”). Brennan involves a medical malpractice suit brought by a
patient against his doctor. Id. at 106. After the complaint was filed, the doctor’s
malpractice insurer became insolvent, triggering the statutory obligation of the
Kansas Insurance Guaranty Association (“KIGA”) to cover the claim. Id. While
the suit was pending, the Kansas legislature passed a law authorizing KIGA to
offset its liability to claimants with amounts paid by the claimant’s health
insurance. Id. at 106. The statutory change was expressly made retroactive to
pending claims. Id. The Kansas Supreme Court held that retroactive application
of the change to Mr. Brennan’s pending claim against KIGA adversely impacted
his “vested right” because it “extinguished Brennan’s right to recover from
KIGA,” a “statutory right [that] arose at the time [the doctor’s malpractice
insurer] was declared insolvent.” Id. at 114; see also id. at 106 (noting Mr.
Brennan “received medical reimbursements from his personal health insurance
policy that totaled more than the insolvent insurer’s policy limits”). Thus, even
though the statutory change was purely remedial, the Kansas Supreme Court held
there were due process concerns if it was applied retroactively to Mr. Brennan.
Id. at 114.
-16- In Norris, the Kansas Supreme Court addressed the retroactivity of a
procedural amendment. 367 P.3d at 1253. Norris involved a statutory deadline
that was shortened after the plaintiff filed a petition for judicial review of an
adverse decision by the Kansas Employment Security Board of Review. Id. at
1255. The Kansas Supreme Court held the new law was procedural and, thus,
would generally apply retroactively. Id. at 1258. However, retroactive
application would bar the plaintiff’s action even though it was timely when filed,
eliminating the plaintiff’s cause of action entirely. Id. Accordingly, the court
held that retroactive application was inappropriate. Id.
The repeal of § 50-115 did not completely or even partially extinguish any
of Farmland’s vested rights. Both before and after the 2013 repeal, Farmland, or
any other plaintiff, could bring a private action for alleged violations of the
KRTA—including violations detailed in § 50-112—pursuant to § 50-161(b) and
could recover “treble the actual damages sustained.” The repeal of § 50-115 only
affected Farmland’s right to recover full consideration damages, which is not a
substantive right but merely a remedy by which the substantive rights set out in
the KRTA are enforced. See State v. Dupree, 371 P.3d 862, 873 (Kan. 2016)
(“[T]he general rule is that there are no vested rights in a particular remedy or
method of procedure.” (quotation omitted)). Further, unlike the situations in
Brennan and Norris, retroactive application of the statutory change in this matter
-17- does not have the practical effect of eliminating Farmland’s cause of action
alleging a violation of the KRTA. Farmland is not precluded from recovering
treble damages if it prevails on the merits of its claims. See infra § III. F.
As to the third and final factor, we examine “the nature and strength of the
public interest furthered by the legislation.” Brennan, 264 P.3d at 113 (quotation
omitted). The purposes of the 2013 amendments to the KRTA were set out by the
Kansas legislature in Kan. Stat. Ann. § 50-163. Those purposes include
“harmoniz[ing]” the KRTA with federal antitrust law which does not allow for
recovery of full consideration damages. Kan. Stat. Ann. § 50-163(b); see also
15 U.S.C. § 15(a) (providing treble damages may be recovered by “any person
who shall be injured in his business or property by reason of anything forbidden
in the antitrust laws”). Section 50-163(d)(3) also states that the KRTA “shall not
be construed to prohibit . . . recovery of damages pursuant to [Kan. Stat. Ann. §]
50-161, and amendments thereto.” According to Farmland, however, if
retroactive application of the repeal of § 50-115 results in the dismissal of its
claims against Appellants, none of these interests are furthered. To the contrary,
Farmland argues, dismissal of long-pending claims—assuming they have
merit—permits antitrust violators to escape liability. As we have already
concluded, Farmland’s concern is unfounded. Retroactive application of the
statutory elimination of full consideration damages does not compel dismissal of
-18- Farmland’s claims and it is entitled to treble damages if it prevails on the merits
and proves entitlement to damages. Accordingly retroactive application of the
repeal furthers the purposes of the statutory change by harmonizing Kansas law
with federal law while still providing a prevailing plaintiff with a remedy. 8
Having considered all the factors deemed relevant by the Kansas Supreme
Court, we conclude the repeal of § 50-115 applies retroactively in this matter. All
three factors weigh in favor of retroactivity: the repealed statute was purely
remedial, applying the repeal retroactively does not present any due process
concerns because Farmland’s vested rights are not affected by retroactive
application, and retroactive application of the repeal promotes the purposes of the
legislative change.
E. Kansas Courts Have Not Considered Whether the Repeal of § 50-115 Applies Prospectively or Retroactively
The only remaining consideration is whether the Kansas courts have
previously indicated the repeal of § 50-115 should not be applied retroactively.
Farmland relies on two Kansas cases for the proposition the Kansas courts, if
squarely presented with the question, would rule in favor of prospective
application. The first, Smith v. Philip Morris Cos., 335 P.3d 644, 651 (Kan. Ct.
App. 2014), involved a class action brought against cigarette manufacturers,
8 Farmland has not argued the treble damages remedy set out in § 50-161(b) is insufficient to make a plaintiff whole.
-19- alleging the manufacturers conspired to fix the wholesale price of cigarettes in
violation of the KRTA. In its opinion, the Kansas Court of Appeals provided a
short overview of the KRTA, noting “substantial changes” had been made to the
law in 2013. Id. at 652-53. The court mentioned the repeal of § 50-115 as one of
the changes that did “not apply retroactively to cases . . . already pending” at the
time of the amendments. Id. at 652 Although the plaintiff in Smith sought full
consideration damages, id. at 653, the matter before the Kansas Court of Appeals
involved only the question of whether defendants were entitled to summary
judgment on plaintiffs’ conspiracy claim. Id. at 651-52 (“The case is now before
us because the district court found Plaintiffs stated only a claim for a wholesale
price-fixing conspiracy and granted Defendants summary judgment on that
claim.”). To answer that question, the court focused its attention on § 50-112, the
provision of the KRTA proscribing certain activities in restraint of trade. Id. at
653. Because the court concluded summary judgment was appropriate, any
mention of full consideration damages or the retroactivity of the repeal of § 50-
115 was dicta. Further, the statement in Smith is neither precedent for nor a
suggestion that the repeal in 50-115 applies only prospectively since the Kansas
Court of Appeals did not engage in any retroactivity analysis.
The second case on which Farmland relies, O’Brien v. Leegin Creative
Leather Products, Inc., No. 108,988, 2014 WL 1362657 (Kan. Ct. App. April 4,
-20- 2014) (“O’Brien II”), is no more helpful. The Kansas Court of Appeals issued an
unpublished decision in O’Brien II addressing a KRTA case pending at the time
§ 50-115 was repealed. The issue appealed was whether the district court abused
its discretion when it modified the class by narrowing it. Id. at *4. As it did in
Smith, the Kansas Court of Appeals began its analysis with a brief overview of
the changes made to the KRTA in 2013. Id. at *5. It then stated, without any
analysis of the Kansas retroactivity principles discussed at length above, that it
was evaluating the district court’s ruling based on “the law as it stood before
April 18, 2013, not afterward.” Id. Although the court later discussed § 50-115
in its analysis of the district court’s ruling, id. at *9, the discussion was based on
the court’s assumption that all the pre-2013 statutory provisions applied. Because
the O’Brien II memorandum opinion lacks any meaningful retroactivity analysis,
it does not support Farmland’s assertion that the Kansas courts have indicated
they would not apply the repeal of § 50-115 retroactively to cases pending at the
time of the repeal.
Having considered the parties’ arguments, we conclude no Kansas appellate
court has directly, or even indirectly, addressed the retroactivity issue currently
before this court. 9 Thus, no Kansas case law affects our conclusion that the
9 We note the United States District Court for the District of Nevada concluded the repeal of § 50-115 operates retroactively. In re W. States Wholesale Nat. Gas Antitrust Litig., MDL No. 1566, 2017 WL 3610553, at *3–*4 (continued...)
-21- repeal of § 50-115 operates retroactively to extinguish Farmland’s ability to
recover full consideration damages.
F. Appellants’ Request for Summary Judgment
In Appellants’ opening brief, they ask for three forms of relief: (1) a ruling
that the repeal of § 50-115’s full consideration remedy applies retroactively;
(2) reversal of the district court’s decision denying their motion for summary
judgment; and (3) remand of the matter to the district court with instructions to
enter judgment in their favor. Although we conclude the repeal of full
consideration damages applies retroactively, Appellants are not entitled to
In support of their request for summary judgment, Appellants argue the
repeal of § 50-115 has left Farmland without any available remedy because it has
only sought full consideration damages and cannot now change tack and seek
treble damages. They assert Farmland had ample opportunity after the repeal of
§ 50-115 to amend its complaint to specifically seek treble damages pursuant to
§ 50-161(b) but purposefully chose not to do so. See Norris, 367 P.3d at 1258
(holding a procedural statute did not apply retroactively, in part, because the
9 (...continued) (D. Nev. Aug. 22, 2017), rev’d on other grounds by 743 F. App’x 802 (9th Cir. 2018). That ruling was based on the district court’s conclusion the statute was remedial, not substantive. Id. at *3. The court, however, did not engage in any extended analysis of why § 50-115 was remedial or examine whether retroactive application of its repeal would affect vested rights.
-22- plaintiff “d[id] not have a reasonable time after the enactment of the statute to
comply” with the statutory change). Appellants characterize Farmland’s decision
to challenge retroactive application of the statutory change as a choice “to
exclusively pursue a potentially more lucrative remedy” even though the treble
damages remedy has always been available. According to Appellants, the lack of
any available remedy is the result of Farmland’s litigation strategy, not the mere
retroactive application of the statutory change.
We conclude Farmland’s amended complaint, filed on October 17, 2005,
preserves the treble damages remedy available under § 50-161(b). 10 In the
“Jurisdiction and Damages” paragraph of its amended complaint, Farmland stated
10 Ironically, Appellants seek summary judgment from this court but also assert the controlling legal question of whether Farmland’s complaint sufficiently preserves the treble damages remedy is not properly before us as part of this interlocutory appeal. This court, however, has previously exercised its discretion in an interlocutory appeal to resolve whether a party is entitled to summary judgment even though the district court did not expressly certify the question of whether a genuine issue of material fact precluded summary judgment. Rural Water Dist. No. 4 v. City of Eudora, 720 F.3d 1269, 1278 (10th Cir. 2013). Under the standard set out in City of Eudora, we should exercise our discretion “if an issue is ‘fairly included within the certified order’ and is ‘a controlling question of law.’” Id. Here, the district court’s order certifying this interlocutory appeal addressed the parameters of Farmland’s complaint, concluding it did not preserve the treble damages remedy. That conclusion, while erroneous, was one basis on which the district court certified this interlocutory appeal. It is also central to the question presented in the district court’s retroactivity order, i.e., whether Farmland has no available remedies if it prevails on the merits of its KRTA claims. See supra § III. D. Thus, we conclude the issue is “fairly included within the certified order” and must be addressed to resolve “a controlling question of law.” In the interest of judicial economy, we exercise our discretion to resolve it.
-23- its claims were brought pursuant to several Kansas statutes, including § 50-161
which is the treble damages provision. As to the damages sought, the paragraph
further stated Farmland was suing to “obtain damages and injunctive and other
equitable relief which plaintiff has sustained due to violations by defendants
named herein of these statutes (emphasis added).” In its prayer for relief,
Farmland specifically asked for full consideration damages under § 50-115 but it
also requested “such other and further relief as [the] Court may deem necessary
and appropriate.” 11 Rule 54 of the Federal Rules of Civil Procedure does not
require any greater specificity than this to preserve a remedy. 12 See Fed. R. Civ.
P. 54 (stating that other than default judgments, “[e]very other final judgment
should grant the relief to which each party is entitled, even if the party has not
demanded that relief in its pleadings”). Because retroactive application of the
statutory change at issue in this matter does not extinguish Farmland’s right to
pursue its claims against Appellants and recover some measure of damages if it
prevails on the merits, Appellants are not entitled to summary judgment.
11 The parties have not directed this court to any pretrial order refining or narrowing the scope of the damages recoverable by Farmland. 12 Although Appellants assert in a single phrase in their reply brief that they will be prejudiced if Farmland is permitted to pursue the treble damages remedy, they do not explain the nature of this alleged prejudice in any detail. And, in any event, even if prejudice may be relevant to what evidence Farmland is permitted to present on the treble-damages issue, it is not relevant to the purely legal question of whether Farmland’s amended complaint is sufficient to preserve the treble damages remedy.
-24- IV. Conclusion
We affirm the district court’s order denying Appellants’ motion for
summary judgment but for reasons other than those given by the district court.
Specifically, we hold the repeal of Kan. Stat. Ann. § 50-115 applies retroactively
in this matter. If Farmland prevails on the merits of its KRTA claims, it may not
recover full consideration damages but it may recover any other damages to which
it shows entitlement.
-25-